Criticisms of drug prohibition laws

According to Milton Friedman, prohibition of drugs creates many negative externalities like corruption, increased incarceration rates, disproportional imprisonment of African Americans, destruction of inner cities, compounding the harm to users by making drugs exorbitantly expensive and highly uncertain in quality, under treatment of chronic pain and harm to foreign countries.[2]

According to Mark Thornton, drug prohibition imposes a heavy cost and is extremely difficult to enforce. Arguably, effective prohibition is impossible to achieve, because the unintended consequences of prohibition itself preclude any benefits. To the extent that prohibition results in increased prices, it produces increased crime and political corruption. Higher prices for a prohibited product also result in the substitution of related products and the innovation of more dangerous and more potent substitutes. Therefore, the assumption that higher prices achieve the goals of prohibition is unfounded.[3]

According to Laurence Vance, the War on Drugs is a failure. In the United States, it has clogged the judicial system, unnecessarily swelled prison populations, fostered violence, corrupted law enforcement, eroded civil liberties, and destroyed financial privacy. It has encouraged illegal searches and seizures, ruined countless lives, wasted hundreds of billions of taxpayer dollars, hindered legitimate pain treatment, and had no impact on the use or availability of most drugs.[4]

According to philosopher John Gray, the worldwide war on drugs should be ended because:

The drug war has maimed, traumatized, or displaced uncounted numbers of people.

In spite of it, drug use has remained embedded in the way we live.

The costs of drug prohibition now far outweigh any possible benefits.

Penalizing drug use drives otherwise law-abiding people into the criminal economy.

Prohibition exposes drug users to major health risks.

Illegal drugs can't easily be tested for quality and toxicity.

A great many drug users in years past lived productive lives before drugs were banned.

Walter Block argues that the legalization of drugs would prevent civil liberties from being threatened any further, it would reduce crime rates, reverse the potency effect, improve the quality of life in the inner cities, prevent the spread of disease, save the taxpayer money, and generally benefit both individuals and the community as a whole.[6]

Wilton Alston points out that there is another reason for maintaining the "War on Drugs" despite its failings: profit. The drug war may be the largest economy in the US. Politicians, judges, lawyers, police officers, deputy sheriffs, jailers, prison guards, social workers, probation and parole officers, a third of the military, Customs, FBI, DEA, IRS, U.S. Marshals. The drug war makes these people's house and car payments at least in part. There’s too much money to be made fighting it and too many jobs at stake to make it legal. Worse yet, the drug war has spawned a network of supposedly private enterprises beholden to it. This is an ecosystem — large, well-funded, politically-entrenched — that exists directly as a result of the war on drugs.[7]

Arguments against legalization

Addictive materials are harmful to the person who uses them

From a purely economic perspective, we can deduce from the fact that a man buys narcotics the conclusion that he values them more than their cost. The value-free economist can only conclude that, in the view of the economic actor, at the time the decision was made, the choice of consumption, whether alcohol or Amadeus, was made in order to enhance his welfare.

The paternalistic argument (bad addictive materials should be legally prohibited) rings true from a health point of view. If there are such materials, ending their use would be a medical accomplishment. But this is irrelevant to public policy analysis, at least from the libertarian legal perspective. There are many other things that are deleterious; for example, chocolate, ice cream, hang gliding, ice skating, boxing, fatty foods, automobile racing, fried chicken. If this argument was accepted in the present case, logic would require that all such items and activities are forbidden.

Let us now concede for the sake of argument that heroin is harmful. Even so, injury is a relative, not an absolute concept. Harmful, but compared to what? Alcohol? Tobacco? Many more people - even proportional to actual use - die of the latter two than of the former. If foreclosure is indicated, it is thus by no means clear as to which item it should be applied. Further, legal suppression does not improve, but rather exacerbates the health problem. This is because of the potency effect of prohibition: the mere existence of prohibition, and the more severely it is administered, the stronger will be the potency of the ensuing drugs. A smuggler would rather risk transporting a suitcase full of cocaine than marijuana, because of its greater value. The same phenomenon occurred with alcohol in the early part of the 20th century: beer manufacture declined, while that for hard liquor increased. This, too, is the explanation for the most recent generation of chemical substitutes: crack, ice, PCP, etc

There are some people who even go so far as advocate entrenching into law the right of suicide. These individuals, as in the case of the pro-choicers, are logically obligated to support repeal. For at worst addictive drugs are a (slow) form of suicide.[8]

Addictive drugs are financially harmful to other people than the users

This is true, but only under a regime of socialized medicine. If you overeat, and contract heart disease, I, along with everyone else, am forced to pay for it. If I smoke cigarettes and fall victim to cancer, you, and all other citizens, must foot the bill. We, therefore, each have a clear and focused interest in the health habits of everyone else.

But why accept this context as a fact of nature? Coercive medical insurance schemes have many shortcomings, not the least of which is the problem of moral hazard, which encourages all parties to overuse scarce health services since they are priced at subsidized costs. Given a free market in medicine, this reason for restraint of drug markets all but vanishes. Further, alcohol and tobacco are far more harmful than addictive drugs. To the extent that this objection has any merit, we should first enact legislation against the former, and only then prohibit the latter.[8]

Addictive drugs promote crime

It is the suppression of narcotics that leads to criminal behavior, not these substances themselves. If left to the market, the prices of heroin, cocaine, marijuana and all the rest would be exceedingly modest. After all, they are based for the most part on very hardy plants, which cost little to harvest and process. The reason they are so expensive at present is because of their legal status: it is highly risky to bring them to market. The high prices they can fetch, however, create vast profits. These attract people whose adherence to the niceties of the law are less than thorough.

Crime comes about in three ways based on this scenario. First, the farmers, refiners, transporters, street vendors, etc., involved in the practice are per se considered criminals, since they break the law. However, there are no victims of these commercial interactions; there are only willing participants involved. Second, because of the exorbitant costs of the drugs, addicts must resort to crime (burglaries, auto theft, assault and battery, etc.) in order to obtain the funds necessary to feed their habits. Third, are those who pay the ultimate penalty as a result of gun battles in the streets between different gangs contending for turf. These “mushrooms” are also entirely innocent, and lose their lives not because of drugs in and of themselves, but rather due to the law.

There are claims to the effect that narcotic usage creates crime in a very different way: by turning the addict into a crazed, enraged lunatic, uncontrollable in his lust to lay waste to the countryside, and all who reside in it. There are several precedents which can be used in behalf of this claim. One is the British experience with legalization, where doctors in hospitals would not start newcomers out on this path, but would administer the drug to confirmed addicts. The finding from this source is that the recipients of this medication were able to lead normal lives without any extraordinary involvement in criminal activity. Second are the opium dens of Chinese origin. The denizens of these establishments, too, were not given over to violence; if anything, the very opposite was the case. And third is the example of the one segment of US. society which has almost full access to such material at cut rate prices: physicians. Experience has failed to show enraged antisocial behavior as a result.[8]

Legalization would massively increase drug use

The elasticity of demand for drugs in general is very low. This is because such items are usually seen by their consumers as necessities, not luxuries. While one might severely reduce demand for luxuries in the face of an increased price, or even give it up entirely in the extreme, this does not apply to necessities. But if such behavior is characteristic of most drugs, it applies even more so in the case of addictive substances. For at least in the mind of the addict, these are the most difficult of all from which to refrain.

Secondly, the effect of legalization - in markedly reducing profits - will be to greatly decrease the incentive for "pushing." No longer will it pay for addicts to go to school yards, offering free samples, in an attempt to "hook" children into a life of addiction in order to support their own habits. With a free market, where these products will be exceedingly cheap, there will be no temptation to resort to these extraordinary means of salesmanship. Third, even if quantity increases, potency will fall. Given this effect, a great amount of total drugs may be less harmful to the population than what is presently consumed, as heroin and cocaine begin to take the place of the more deleterious chemical derivatives, and as marijuana begins to replace those two.[8]

Decriminalization in Portugal

On July 1, 2001, a nationwide law in Portugal took effect that decriminalized all drugs, including cocaine and heroin. Under the new legal framework, all drugs were "decriminalized," not "legalized." Thus, drug possession for personal use and drug usage itself are still legally prohibited, but violations of those prohibitions are deemed to be exclusively administrative violations and are removed completely from the criminal realm. Drug trafficking continues to be prosecuted as a criminal offense.

While drug addiction, usage, and associated pathologies continue to skyrocket in many EU states, those problems—in virtually every relevant category—have been either contained or measurably improved within Portugal since 2001. In certain key demographic segments, drug usage has decreased in absolute terms in the decriminalization framework, even as usage across the EU continues to increase, including in those
states that continue to take the hardest line in criminalizing drug possession and usage. By freeing its citizens from the fear of prosecution and imprisonment for drug usage, Portugal has dramatically improved its ability to encourage drug addicts to avail themselves of treatment. The resources that were previously devoted to prosecuting and imprisoning drug addicts are now available to provide treatment programs to addicts. Those developments, along with Portugal’s shift to a harm-reduction approach, have dramatically improved drug-related social ills, including drug-caused mortalities and drug-related disease transmission. Ideally, treatment programs would be strictly voluntary, but Portugal’s program is certainly preferable to criminalization.[9]